McDonnell trial: Closing arguments coming Friday

The McDonnells say they couldn't conspire because they were barely speaking. Will that prove to be enough of a defense?

The McDonnells say they couldn't conspire because they were barely speaking. Will that prove to be enough of a defense?

Travis Fain tfain@dailypress.comDaily Press

RICHMOND — Jurors will hear closing arguments Friday in the U.S. government's case against former Gov. Bob McDonnell and his wife, Maureen.

It's unclear whether the case will go to the jury Friday afternoon. Judge James R. Spencer may wait until after the holiday weekend to read jurors the fairly complex set of instructions they're to use in deciding this case.

Attorneys for the prosecution and the defense tried Thursday to persuade the judge to bend those instructions in their favor. Based on the number of requested changes, it appears the prosecution is more satisfied with the instructions than the defense, which complained repeatedly that the judge's proposed instructions stacked the deck against the former first couple.

The final instructions won't be made public until the judge reads them to the jury after closing arguments, but Spencer indicated he's not likely to make many changes despite an afternoon of legal wrangling.

The instructions are crucial because the case is complicated, and the federal bribery laws in play are, according to experts, vague on key points.

The McDonnells clearly took gifts and loans from Jonnie R. Williams Sr., a wealthy businessman and the government's star witness in this case.

Clearly Williams took meetings with state officials in an effort to promote Anatabloc, his company's dietary supplement. He was allowed to help set guest lists at a pair of events at the governor's mansion in an effort to pitch doctors on Anatabloc.

Williams tried to get state university researchers to run clinical trials on the product in hopes of substantiating his claims about its health benefits and boosting its value.

But the trials never happened. He didn't get any state funding.

McDonnell occasionally checked in on the progress of trial discussions, and Maureen McDonnell travelled around the country with Williams, giving a handful of short speeches in favor of the product.

The question is, was that enough to justify federal conspiracy and bribery charges, which come with a potential maximum prison sentence of decades for the governor and his wife?

The jury instructions will help jurors answer that question. There was much discussion Thursday about the nature of official acts — the “quo” in the alleged “quid pro quo” scheme.

That's a Latin phrase often translated into “this for that,” or in this case “these for those.”

The government maintains that specific acts need not be tied to specific payments. Rather, “a whole stream of these for a stream of those” is enough, Assistant U.S. Attorney Ryan Faulconer argued Thursday.

Defense attorneys said the government's charges are too vague. Things “as innocent as arranging a meeting” aren't enough, said Noel Francisco, one of Bob McDonnell's 15 attorneys in this case. The government must show specific acts, not “some unspecified benefit,” Francisco said.

Borrowed credibility does not bribery make, he said.

The jury had most of Thursday off, and wasn't in the room for arguments about instructions. They heard from only one witness Thursday, an FBI agent the prosecution called to go over a series of charts made up to show how many nights the McDonnells spent together, based on schedules from 2011 and 2012.

The intent seemed clear: Combat the defense narrative that the McDonnell marriage had so disintegrated by this time that the couple couldn't have conspired to take Williams' money in return for help with Anatabloc.

But FBI Special Agent Kathryn Weber's testimony gave the defense an opening. Her charts indicated that Bob and Maureen McDonnell spent 489 nights together in the governor's mansion, and another 155 together on various trips, out of 721 total nights she reviewed.

She made a pie chart to illustrate this. Then John Brownlee, one of Bob McDonnell's lead attorneys, pointed out that the chart wasn't to scale. Instead of showing the couple together in the mansion for roughly two-thirds of the nights in question, which would be roughly accurate, the pie chart looked more like 75 percent.

Brownlee showed Weber his own chart, and asked if it was more accurate, scale-wise.

“Yes,” she replied.

He began picking away at individual nights included in the chart. For several of them, the governor's schedule showed him out of state, arriving home close to midnight. Weber said repeatedly she counted these nights, since the couple was apparently together “overnight.”Weber also acknowledged that the first lady's calendars from this period weren't as detailed as the governor's. She said she worked primarily off the governor's schedules, unless Maureen McDonnell's specifically said she was somewhere else.

Brownlee pulled out mansion visitor logs, showing Williams visiting late in the evenings on two nights the governor arrived home very late. The visits were short, based on the times Williams signed in and out with mansion security.

But the first lady doesn't have to sign in and out of the mansion, Brownlee noted.

“We just have no idea where Mrs. McDonnell was,” he said.

“That's correct,” Weber replied.

Brownlee noted that the McDonnells have a home in Glenn Allen, and suggested that sometimes Mrs. McDonnell left the mansion to stay there.

He also zeroed in on Sept. 5, 2011. This is the day Bob McDonnell sent his wife the plaintive love email he testified to earlier in this trial, begging her to overcome her anger and work on their marriage.

She never replied, he testified. Phone records show her texting Williams — on whom the defense says she had a crush — several times that day.

“The word ‘together’ is kind of a broad term,” Brownlee said.

After Brownlee's cross-examination, Assistant U.S. Attorney Jessica Aber rose to ask Weber a few redirect questions. She estimated that Brownlee cherry picked 15 or 20 days out of the ones Weber classified as spent together in the mansion.

If you subtract 20, “generously,” from 489, Aber said, that's still 469.

With that, the prosecution rested its case against the McDonnells. Before the court turned its attention to jury instructions, the defense moved one more time for acquittal — a standard motion made before the case goes to jury.

Spencer denied these motions quickly, much as he did earlier in this trial, leaving the former first couple's fate in the jury's hands.